Musings: Twists and Turns

The Kauai County planning department has dramatically scaled back its proposed ordinance regulating homestays/B&Bs prior to Tuesday's public hearing on the hotly debated topic.

And the gist of it is this:

Residents will have to accept either 10 homestays per year, or a possible flood of illegal transient vacation rentals (TVRs) seeking legitimacy before the law is changed. 

Why? Because the county has taken so damn long to deal with TVR enforcement and homestay rules.

The new proposed ordinance has eliminated all references to major and minor permits, census district allocations, complaints, enforcement, inspections and prohibitions on homestays in the agricultural district.

Instead, it simply states:

On a first-come-first-served basis of applications deemed complete by the Planning Department, no more than ten (10) applications for homestay operations shall be reviewed by the Planning Commission each year.

The proposed ordinance also amends the zoning code's current definition of homestay to read:

“Homestay” means an owner occupied dwelling unit in which overnight accommodations are provided to transient guests within the same dwelling unit in which the owner resides or in a guest house and the primary residential structure(s) used for homestay operation is the owner's primary residence, and the respective owner currently benefits under Sec. 5-A-11 of this Code for a homeowner's exemption for the homestay site.

According to the director's report that accompanied the revised ordinance, the department believes the new definition will make it clear that the homestay operator is the actual resident property owner, “which should act as a self-regulating mechanism” on the noise and other disturbances that often plague transient vacation rentals (TVRs).

The department also noted the 10-per-year limit was imposed to “ensure there is not an overage of applications...both for land use carrying capacity as well as departmental processing capabilities.”

The report said the initial proposed ordinance, which was already meeting public resistance, had to be amended in light of “recent developments” within the department's enforcement division “in order to expedite the adoption of a clear and specific standard and review parameters under which homestay applications can be processed.”

In other words, the department can't muck around too long, because people who are getting busted for operating illegal TVRs are now trying to pass them off as B&Bs in order to keep operating. The report acknowledges that some of the scofflaws have discovered the “possible loophole in applying for psuedo-TVR operations outside of the VDA (visitor destination area) and resort zoning district.”

The VDA and resort district are the only places where new TVRs can legally operate. All other TVRs are required to have transient accommodation certificates, which are no longer being issued.

So the department has to close the loophole with a simple, hopefully more palatable, ordinance before it gets choked with a flood of fake B&B/homestay applications by the illegal TVRs.

The B&B/homestay/illegal TVR folks are already staging a serious pity party, with websites, newspaper articles and letters to the editor from displaced tourists decrying the county's mean, arbitrary and completely unexpected order to cease and desist.

They're claiming through crocodile tears that they either never knew they had to have a permit to operate, and/or there was no way to get such a permit — neither of which are true. They were always required to have a use permit.

Though some have tried to pretend that homestays are the sole purview of aunty and uncle, trying to make a few bucks to supplement their social security — and no doubt that's true in a few isolated cases — for many more B&Bs/homestays are a very lucrative business, just like the TVRs that they really are.

For example, Sheila Heathcote, the owner of Hale O Nanakai, laments that upon receiving the cease and desist notice:

I took down my beautiful $7000 website, said good-bye to a young lady who was going to help me with the daily operation (and who had quit her $45,000/year job at a large Vacation Rental firm to come help me), canceled my listings on Air B&B, Kauai Vacation Resorts website and the Hawaii Visitor's Bureau gohawaii.com website.

Now, that ain't no mom and pop operation. It's a sleeps-14 mini hotel, which would not have been allowed even as a TVR because it's a multi-family dwelling unit.

Still, the county also must shoulder blame for this mess because the general plan update noted way back in 2000 the need for a “clear policy” regarding TVRs and B&Bs. It wasn't until 2008 that the Council adopted a law regulating TVRs, with B&Bs/homestays to be addressed separately.

After that wholesale giveaway of TVR permits to people who didn't deserve them, followed by a second handout to folks running TVRs on ag land, the county sat on its hands for several years. 

When this blog's 2013 Abuse Chronicles documented how many folks got TVR permits without providing the required documentation, the Council and administration decided not to crack down on them, but instead go after the “low-hanging fruit” — the zillions of TVRs, homestays and B&Bs that never even bothered to apply for a permit.

Once enforcement finally began, with the planning director and county prosecutor working in tandem, lawyers came up with a new scam: pass off the illegals as B&Bs/homestays so they can get a permit. Suddenly, planners realized they needed to tighten up the language regarding home stays right quick.

And here we are. 

Better lawyer-up folks. It's gonna be a long, hard ride.